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|The Philippine Baselines: Why the big hullabaloo?|
|Tuesday, 09 June 2009 15:55|
At the Second China-ASEAN Dialogue between Defence Scholars (CA DSDS) in Beijing (March 29-April 2, 2009), I was asked by both my colleagues and the Chinese media observing the proceedings of the forum, about the recent passage of the Philippine baselines law, which had apparently been internationally twisted out of proportion by the Philippine media.
I told them that we had not really changed the status of our Kalayaan claim, which conflicts with other countries including China and which would be taken up under the 2002 ASEAN Declaration on the Code of Conduct on the South China Sea, and that we merely had to correct legislation to conform with UNCLOS.Photo: Mike Gonzalez. Kalayaan is a municipality in the province of Palawan. It encompasses the part of the Spratly Islands in the South China Sea that is claimed by the Philippines, although it only occupies eight islands in the area.
I promised that I would give an explanation in writing the following day. I thus prepared a brief that evening.
The following is what I submitted as “my own take” on the controversial issue related to the Philippine definition of the baselines law, as covered by Republic Act 9522 enacted on March 10, 2009, and does not reflect the official position of the Philippine government.
Republic Act 3046 dated June 17, 1961, as amended by RA 5446, defined the Philippines’ maritime borders (See baselines as indicated below). However the baselines specified in this law were not in consonance with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) as archipelagic baselines.
One of the foremost proponents of the archipelago doctrine, the Philippines declared itself as an archipelago together with Indonesia and Mauritius when the doctrine was passed by the UN during UNCLOS III in 1982.
Having done so, we needed to submit our definition of our archipelagic sealanes passage and we could not do so unless we have perfected our baselines in accordance with the UNCLOS.
Indonesia has complied, and I was present at that meeting in London when the designation of its archipelagic sealanes was submitted by its delegation to the International Maritime Organisation Council, I believe in 1990.
The significance of the archipelagic baselines is that the waters within will not be considered territorial waters but rather as archipelagic waters, in which case the archipelagic state has the right to designate archipelagic sealanes rather than allow totally uncontrolled navigation from high seas to high seas passing through.
Indonesia had likewise been asking us, during our bilateral boundary delimitation talks, to give the location of our archipelagic sealanes so that they may integrate the same for the passage between Sulawesi Sea and the China Sea through our waters.
In 2006 I attended one such bilateral meeting in Jakarta on August 4-7, 2004 and in fact informed them about what the Philippine Coast Guard had prepared as a passage through Philippine waters, which was obviously tentative.
Thus there was a need to enact a new law amending the archipelagic baselines, in order to conform to the requirements of Article 47 of the UNCLOS that the points connected by the baselines must not exceed 100 nautical miles, except that three percent of the total number may go beyond 100 but not exceed 125 nautical miles, which RA 3046 as amended by RA 5446 violated.
Under RA 3046 and RA 5446, for example, the baseline along the Moro Gulf in Mindanao is about 149 nm (and there are more violating the rule).
The 200-mile Economic Zone
The matter concerning archipelagic sealanes and territorial/archipelagic waters is important security-wise. Likewise important and more significant economically is that concerning our continental shelf, which somehow affects the breadth of the EEZ. We needed to amend the baselines as well for this reason.
Philippine claim on the Kalayaan
The claim on the area identified by the Philippines as Kalayaan Islands (not the entire Spratlys), is covered under PD 1596 issued on June 11, 1978. This claim overlaps partly or wholly with the claims of China, Vietnam and Malaysia (I believe the Brunei claim does not overlap with the Philippine claim).
The largest island, Itu Aba, is occupied by Taiwan, whose claim, I also understand, is the same as China’s. Itu Aba was occupied by Filipinos led by a maritime school owner, Tomas Cloma, in the 1950s until booted out by Taiwan.
The overlapping claims are subject to legal determination bilaterally or multilaterally among claimant countries, and are covered by the 2002 Regional Declaration on Conduct of Parties to the South China Sea, which commits concerned parties to commonly agreed norms, particularly on the peaceful resolution of conflict.
The parties concerned “undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognised principles of international law, including the 1982 UN Convention on the Law of the Sea”; and “to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”
Thus it is impractical for the Philippines to enact a new law that alters its claim beyond that existing on record (PD 1596). It maintains that status quo, which should be left for determination by the proper forum, while addressing the need for its own baselines (that do not encompass the Kalayaan claim) in order to take advantage of the Exclusive Economic Zone (EEZ) that will thus be generated from it..
As Philippine Executive Secretary Eduardo R Ermita (concurrently the Chairman of the Commission on Maritime and Ocean Affairs) answered when queried about the stipulations in the Code: “Whatever problems we may have [on the contested territories…will have to be done with the code of conduct agreed upon by the Association of Southeast Asian Nations and China.”
Commodore Carlos L Agustin AFP (Ret)Commodore Carlos L Agustin AFP (Ret) is the President, National Defense College of the Philippines in Quezon City, and is the Chairman and President, Maritime League.A US Naval Academy graduate in 1960, he is a retired naval officer who served the Philippine Navy and the Armed Forces of the Philippines from 1960 to 1993. He was Commandant, Philippine Coast Guard from 1990 to 1993 after which he was appointed General Manager, Philippine Ports Authority until 1998. He was also concurrently a Governor of the World Maritime University from 1992 to 1997.
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